R v SBV - [2011] QCA 330

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBV [2011] QCA 330

PARTIES:

R
v
SBV
(appellant)

FILE NO/S:

CA No 94 of 2011
DC No 455 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against convictions allowed.
2. Convictions and verdicts set aside.
3. New trial ordered on counts 1, 2 and 3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –MISCARRIAGE OF JUSTICE – GENERALLY – where evidence was given by the complainant’s mother and sister with respect to the appellant’s violent nature – where the complainant’s description of the offences did not involve violence by the appellant – where the appellant argued the evidence of domestic violence should have been excluded because its prejudicial effect outweighed its probative value – where the respondent argued the evidence was admissible as explaining “the dynamics of the family unit” – where the appellant failed to object to the evidence at the trial – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL –MISCARRIAGE OF JUSTICE – GENERALLY – where the expert witness was asked to comment about the account of sexual misconduct by the appellant which the complainant gave him – where the expert witness indicated his own “view” with respect to the reliability of the complainant’s evidence – where the trial judge directed the jury in conventional terms about expert witnesses but did not draw attention to the expert’s opinions – where the trial judge commended the expert’s evidence to the jury – where the appellant argues expert’s endorsement of the complainant’s reliability was inadmissible and prejudiced the case – whether there was a miscarriage of justice

CRIMINAL LAW – PROCEDURE – SUMMING UP – where the trial judge asked the expert witness a question during cross-examination – where the prosecutor took up the point during the closing address and misstated the expert’s answer to the question – where the trial judge dealt with the overstatement during the summing-up – where the appellant contends that a warning was required to prevent the misuse of the evidence – whether the trial judge failed to properly direct the jury with respect to the expert evidence

Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49, considered
Farrell v The Queen (1998) 194 CLR 286; [1998] HCA 50, cited
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, applied
R v MBO [2011] QCA 280, cited
R v PAB [2008] 2 Qd R 184; [2006] QCA 212, applied
Toohey v Metropolitan Police Commissioner [1965] AC 595, considered

COUNSEL:

C W Heaton SC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v SBV

Details

AGLC: R v SBV [2011] QCA 330
Case: [2011] QCA 330
Decision Date: 22 November 2011

CaseChat Overview and Summary

The appellant appealed against his convictions for sexual offences, arguing there was a miscarriage of justice due to several issues during the trial. The court considered whether the trial judge erred in allowing evidence of the appellant's domestic violence, despite the complainant not alleging violence in her account. The respondent contended that the evidence was relevant to the family dynamics. Additionally, the appellant argued that the expert witness's comments on the complainant's reliability were prejudicial, as the trial judge did not adequately draw attention to these comments during the summing-up. Lastly, the appellant claimed the trial judge failed to properly direct the jury regarding a misstated answer by the expert during the closing address.

The court examined whether the evidence of domestic violence should have been excluded as its prejudicial effect outweighed its probative value. It noted that the appellant did not object to the evidence at trial, which could affect the admissibility argument. The court also assessed whether the expert's comments about the complainant's reliability constituted an improper endorsement, and if the trial judge adequately addressed the misstated expert evidence during the summing-up. The court determined that the admission of the domestic violence evidence, the handling of the expert's comments, and the direction given to the jury regarding the misstated evidence all contributed to a miscarriage of justice.

The appeal was allowed, and the convictions and verdicts were set aside. The court found that the evidence of domestic violence was wrongly admitted, and the trial judge's handling of the expert's comments and the misstated evidence during the summing-up was inadequate. The appellant's right to a fair trial was compromised by these errors, leading to the conclusion that a new trial was necessary. The court ordered a new trial on counts 1, 2, and 3, reflecting the identified miscarriage of justice.

Orders

Orders of the court

1. Appeal against convictions allowed.

2. Convictions and verdicts set aside.

3. New trial ordered on counts 1, 2 and 3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v SBV [2011] QCA 330
PARTIES:	R v SBV (appellant)
FILE NO/S:	CA No 94 of 2011 DC No 455 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2011
JUDGES:	Margaret McMurdo P, Chesterman JA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against convictions allowed. 2. Convictions and verdicts set aside. 3. New trial ordered on counts 1, 2 and 3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –MISCARRIAGE OF JUSTICE – GENERALLY – where evidence was given by the complainant’s mother and sister with respect to the appellant’s violent nature – where the complainant’s description of the offences did not involve violence by the appellant – where the appellant argued the evidence of domestic violence should have been excluded because its prejudicial effect outweighed its probative value – where the respondent argued the evidence was admissible as explaining “the dynamics of the family unit” – where the appellant failed to object to the evidence at the trial – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL –MISCARRIAGE OF JUSTICE – GENERALLY – where the expert witness was asked to comment about the account of sexual misconduct by the appellant which the complainant gave him – where the expert witness indicated his own “view” with respect to the reliability of the complainant’s evidence – where the trial judge directed the jury in conventional terms about expert witnesses but did not draw attention to the expert’s opinions – where the trial judge commended the expert’s evidence to the jury – where the appellant argues expert’s endorsement of the complainant’s reliability was inadmissible and prejudiced the case – whether there was a miscarriage of justice CRIMINAL LAW – PROCEDURE – SUMMING UP – where the trial judge asked the expert witness a question during cross-examination – where the prosecutor took up the point during the closing address and misstated the expert’s answer to the question – where the trial judge dealt with the overstatement during the summing-up – where the appellant contends that a warning was required to prevent the misuse of the evidence – whether the trial judge failed to properly direct the jury with respect to the expert evidence Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49, considered Farrell v The Queen (1998) 194 CLR 286; [1998] HCA 50, cited KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, applied R v MBO [2011] QCA 280, cited R v PAB [2008] 2 Qd R 184; [2006] QCA 212, applied Toohey v Metropolitan Police Commissioner [1965] AC 595, considered
COUNSEL:	C W Heaton SC…